429 U.S. 507

97 S.Ct. 891

51 L.Ed.2d 1

NATIONAL LABOR RELATIONS BOARD, Petitioner,v.

ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULICSPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS

OF NEW YORK AND VICINITY, LOCAL UNION NO. 638, etc.

No. 75-777.

Argued Oct. 6, 1976.Decided Feb. 22, 1977.

Syllabus

A subcontractor (Hudik) had a subcontract with a general contractor(Austin) for the heating, ventilation, and air conditioning work in theconstruction of a home for the aged. The subcontract job specificationsprovided that Austin would purchase certain climate control unitsmanufactured by Slant/Fin Corp. to be installed in the home, and that theinternal piping in these units was to be cut, threaded, and installed at theSlant/Fin factory. However, the collective-bargaining agreement betweenrespondent union and Hudik provided that pipe threading and cutting wereto be performed on the jobsite. When the units arrived on the job, theunion steamfitters employed by Hudik refused, at the union's instigation,to install them on the ground that the factory-installed internal pipingviolated the collective-bargaining agreement and was steamfitters' work.Austin then filed a complaint with the National Labor Relations Board,alleging that the union had committed an unfair labor practice under §8(b)(4)(B) of the National Labor Relations Act, which makes it an unfairlabor practice for a union to induce employees to refuse to handleparticular goods or products or coerce any person, where "an object" ofthe inducement or coercion is to require any person to cease doingbusiness with any other person, provided that the section shall not beconstrued to make unlawful any primary strike or primary picketing.Specifically, Austin charged that the union's action was taken to forceHudik to cease doing business with Austin and to force Hudik and Austinto cease dealing with Slant/Fin's products. The Administrative Law Judge

held that the union had violated § 8(b) (4)(B), because in seeking toenforce the collective-bargaining agreement and to obtain the work theunion's object was in reality to influence Austin by exerting pressure onHudik, an employer who had no power to award the work to the union.The NLRB agreed, noting that although the union's refusal to install theclimate-control units was based on a valid work-preservation clause in thecollective-bargaining agreement, the pressure exerted by the union onHudik was undertaken for its effect on other employers, and thus wassecondary and prohibited by § 8(b)(4)(B). The Court of Appeals set asidethe NLRB's cease-and-desist order, disagreeing with the NLRB on bothlegal and factual grounds. Held: The union's refusal to install the climate-control units was secondary activity prohibited by § 8(b)(4)(B), ratherthan primary activity beyond the reach of that provision. Pp. 514-532.

(a) The existence of a work-preservation agreement is not an adequatedefense to a § 8(b)(4)(B) unfair labor practice charge. To hold, as theCourt of Appeals did, that a work stoppage is necessarily primary and notan unfair labor practice when it aims at enforcing a legal promise in acollective-bargaining agreement is inconsistent with the statute asconstrued in Local 1976, United Brotherhood of Carpenters v. NLRB, 357U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (Sand Door ), a construction thatwas accepted and that has never been abandoned by Congress. Pp. 514-521.

(b) The Court of Appeals also erred in taking the view that the NLRB's"control" test, under which the union commits an unfair labor practiceunder § 8(b)(4)(B) when it coerces an employer in order to obtain workthat the employer has no power to assign, is invalid as a matter of lawbecause it fails to comply with the standard of National Woodwork Mfrs.Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, that theunion's conduct be judged in light of all the relevant circumstances. Itdoes not appear that either the Administrative Law Judge or the NLRB, inagreeing with him, articulated a different standard from that recognized asproper in National Woodwork, or that the NLRB, in applying its controltest failed to consider all of the relevant circumstances. Pp. 521-528.

(c) The record amply supports the NLRB's conclusion that the union'sobjectives were not confined to the employment relationship with Hudikbut included the object of influencing Austin in a manner prohibited by §8(b)(4) (B). Pp. 528-531.

(d) The Court of Appeals was obliged to review the case under thestatutory standard of whether the NLRB's findings were "supported by

substantial evidence on the record considered as a whole," and thus inreweighing the facts and setting aside the NLRB's order, the Court ofAppeals improperly substituted its own views of the facts for those of theNLRB. Pp. 531-532.

172 U.S.App.D.C. 225, 521 F.2d 885, reversed.

Norton J. Come, Washington, D.C., for petitioner.

Laurence Gold, Washington, D.C., for respondent.

Mr. Justice WHITE delivered the opinion of the Court.

1 Under § 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(B),1 a union commits an unfair labor practice when it induces employees torefuse to handle particular goods or products or coerces any person engaged incommerce, where "an object" of the inducement or coercion is to require anyperson to cease doing business with any other person. A proviso, added to §8(b)(4)(B) in 1959, declares that the section "shall (not) be construed to makeunlawful, where not otherwise unlawful, any primary strike or primarypicketing." Although without the proviso the section on its face would seem tocover any coercion aimed at forcing a cessation of business, the National LaborRelations Board (Board) and the judiciary have construed the statute morenarrowly, both before and after the proviso was added, to prohibit onlysecondary, rather than primary, strikes and picketing.2

2 Among other things, it is not necessarily a violation of § 8(b)(4)(B) for a unionto picket an employer for the purpose of preserving work traditionallyperformed by union members even though in order to comply with the union'sdemand the employer would have to cease doing business with anotheremployer. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct.1250, 18 L.Ed.2d 357 (1967) (National Woodwork ). The question now beforeus is whether a union seeking the kind of work traditionally performed by itsmembers at a construction site violates § 8(b)(4)(B) when it induces itsmembers to engage in a work stoppage against an employer who does not havecontrol over the assignment of the work sought by the union. More specifically,the issue is whether a union-instigated refusal of a subcontractor's employees tohandle or install factory-piped climate-control units, which were included in thegeneral contractor's job specifications and delivered to the construction site,was primary activity beyond the reach of § 8(b)(4)(B) or whether it wassecondary activity prohibited by the statute. As we shall see, this issue turns onwhether the boycott was "addressed to the labor relations of the contracting

employer vis-a-vis his own employees," National Woodwork, supra, at 645, 87S.Ct., at 1268, and is therefore primary conduct, or whether the boycott was"tactically calculated to satisfy union objectives elsewhere," id., at 644, 87S.Ct., at 1268, in which event the boycott would be prohibited secondaryactivity.

3 * Austin Co., Inc. (Austin), was the general contractor and engineer on aconstruction project known as the Norwegian Home for the Aged.3 As theresult of competitive bidding, Austin awarded a subcontract to Hudik-Ross Co.,Inc. (Hudik), to perform the heating, ventilation, and air-conditioning work forthe Norwegian Home construction. Hudik employs a regular complement ofabout 10 to 20 steamfitters. For many years, these employees have beenrepresented by respondent Enterprise Association (Enterprise), a plumbing andpipefitting union. Over the years Hudik and Enterprise have entered intosuccessive collective-bargaining agreements, and such an agreement was inforce at the time that the dispute involved in the present litigation arose. Austinhad no agreement with Enterprise regarding the work to be done on theNorwegian Home project.

4 The subcontract between Austin and Hudik incorporated Austin's jobspecifications. These specifications provided that Austin would purchasecertain climate-control units manufactured by Slant/Fin Corp. (Slant/Fin) to beinstalled in the Norwegian Home. The specifications further provided that theinternal piping in the climate-control units was to be cut, threaded, and installedat the Slant/Fin factory. At the time that Hudik entered into the subcontractwith Austin, Hudik was aware that its employees would be called upon toinstall the Slant/Fin units but not to do the internal piping work for the units onthe jobsite.

5 Traditionally, members of respondent union have performed the internal pipingon heating and air-conditioning units on the jobsite. Also, Rule IX of the then-current collective-bargaining contract between Hudik and Enterprise providedthat pipe threading and cutting were to be performed on the jobsite inaccordance with Rule V, which in turn specified that the work would beperformed by units of two employees.4 There had been similar or identicalprovisions in previous collective-bargaining contracts. There is no dispute thatthe work designated by Austin's specifications to be performed at the Slant/Finfactory was the kind of cutting and threading work referred to in Rule IX.

6 When the Slant/Fin units arrived on the job, the union steamfitters refused toinstall them. The business agent of the union told Austin's superintendent thatthe steamfitters "would not install the Slant/Fin units because the piping inside

the units was steamfitters' work." Enterprise Association of Steam Pipefitters,204 N.L.R.B. 760, 762 (1973). Hudik was informed that the factory-installedinternal piping in the units was in violation of Rule IX of the union contract and"that such piping was Local 638's work." Ibid. When the union persisted in itsrefusal to install the units, thereby interfering with the completion of theNorwegian Home job, Austin filed a complaint with the Board, alleging thatEnterprise had committed an unfair labor practice under § 8(b)(4)(B) of theNational Labor Relations Act by engaging in a strike and encouraging Hudikemployees to refuse to install the Slant/Fin units in furtherance of animpermissible object. Specifically, Austin charged that the union's action wastaken to force Hudik to cease doing business with Austin and to force Hudikand Austin to cease dealing with the products of Slant/Fin. The union's positionbefore the Administrative Law Judge was that it was merely seeking to enforceits contract with Hudik and to preserve the jobsite cutting and threading workcovered by Rule IX.

7 The Administrative Law Judge found that because Austin had specifiedfactory-piped units, there was no internal threading and cutting work to be doneon the jobsite of the kind covered by Rule IX and that no such work at theNorwegian Home project could be obtained through pressure on Hudik alone,even if Hudik was forced to abandon its contract, unless and until Austinchanged its job specifications so as to provide the piping the union membershad traditionally performed for Hudik as a subcontractor. The AdministrativeLaw Judge thus concluded that the union had violated § 8(b)(4)(B) because inseeking to enforce its contract and to obtain the work at the Norwegian Homejobsite, the union's object was in reality to influence Austin by exertingpressure on Hudik, an employer who had no power to award the work to theunion.

8 The Board agreed. Enterprise Assn., supra. It noted first that the steamfitters'refusal to install the Slant/Fin units "was based on a valid work preservationclause in the agreement with Hudik, the subcontractor, and was for the purposeof preserving work they had traditionally performed." 204 N.L.R.B. 760. Thisdid not settle the legality of the work stoppage under § 8(b)(4)(B), however; for"Hudik was incapable of assigning its employees this work; such work wasnever Hudik's to assign in the first place. . . . Respondent was exertingprohibited pressure on Hudik with an object of either forcing a change inAustin's manner of doing business or forcing Hudik to terminate its subcontractwith Austin. Since the pressure exerted by the Respondent on Hudik wasundertaken for its effect on other employers, this pressure was secondary andprohibited by Section 8(b)(4)(B)." Ibid. (as amended by order of Aug. 30,1973).

II

9 A divided Court of Appeals for the District of Columbia Circuit, sitting enbanc, set aside the Board's order. 172 U.S.App.D.C. 225, 521 F.2d 885 (1975).We granted certiorari because of an apparent conflict between the Circuits.5424 U.S. 908, 96 S.Ct. 1101, 47 L.Ed.2d 311 (1976).

10 In setting aside the Board's order, the Court of Appeals disagreed with theBoard on both legal and factual grounds. We deal first with the Court ofAppeals' proposition that "an employer who is struck by his own employees forthe purpose of requiring him to do what he has lawfully contracted to do tobenefit those employees can (n)ever be considered a neutral bystander in adispute not his own." 172 U.S.App.D.C., at 243, 521 F.2d, at 903 (footnoteomitted). Under this view, a strike or refusal to handle undertaken to enforcesuch a contract would not itself warrant an inference that the union sought tosatisfy secondary, rather than primary, objectives, whatever the impact on theimmediate employer or on other employers might be. Thus, where a unionseeks to enforce a work-preservation agreement by a strike or work stoppage,the existence of the agreement would always provide an adequate defense to a §8(b) (4) unfair labor practice charge. This approach is untenable under the Actand our cases construing it.

11 Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) (SandDoor), involved a collective-bargaining contract containing a provision, thenquite legal, that " 'workmen shall not be required to handle non-union material.'" Id., at 95, 78 S.Ct., at 1014. The case arose when certain nonunion doorsarrived at a construction site and the union notified the contractor that the doorswould not be hung. The Board found that the union had committed an unfairlabor practice by encouraging employees to strike or refuse to handle thedisputed doors in order to force the contractor to cease doing business with thedoor manufacturer. The union stood squarely on the contract; and as the casearrived here the sole question was whether the collective-bargaining provisionwas a "defense to a charge of an unfair labor practice under § 8(b)(4)(A) when,in the absence of such a provision, the union conduct would unquestionably bea violation."6 Id., at 101, 78 S.Ct., at 1017.

12 The union argued that if the statute was aimed at protecting neutral employersfrom becoming involuntarily involved in the labor disputes of others,"protection should not extend to an employer who has agreed to a hot cargoprovision, for such an employer is not in fact involuntarily involved in thedispute," especially "when the employer takes no steps at the time of theboycott to repudiate the contract and to order his employees to handle the

goods." In such circumstances, "(t)he union does no more than inform theemployees of their contractual rights and urge them to take the only actioneffective to enforce them." Id., at 105, 78 S.Ct., at 1019. These arguments weresquarely rejected:

13 "Nevertheless, it seems most probable that the freedom of choice for theemployer contemplated by § 8(b)(4)(A) is a freedom of choice at the time thequestion whether to boycott or not arises in a concrete situation calling for theexercise of judgment on a particular matter of labor and business policy. Such achoice, free from the prohibited pressures whether to refuse to deal withanother or to maintain normal business relations on the ground that the labordispute is no concern of his must as a matter of federal policy be available tothe secondary employer notwithstanding any private agreement entered intobetween the parties. See National Licorice Co. v. National Labor RelationsBoard, 309 U.S. 350, 364, 60 S.Ct. 569, 577, 84 L.Ed. 799. This is so becauseby the employer's intelligent exercise of such a choice under the impact of aconcrete situation when judgment is most responsible, and not merely at thetime a collective bargaining agreement is drawn up covering a multitude ofsubjects, often in a general and abstract manner, Congress may rightly beassumed to have hoped that the scope of industrial conflict and the economiceffects of the primary dispute might be effectively limited." Id., at 105-106, 78S.Ct., at 1019.

14 The Court went on to hold that inducements of employees that are prohibited by§ 8(b)(4) in the absence of a contractual provision countenancing them "arelikewise prohibited when there is such a provision," 357 U.S., at 106, 78 S.Ct.,at 1020. This was true even though the making and voluntary observance ofsuch contracts were not contrary to law at the time that Sand Door was decided;however lawful, these contracts could not be enforced "by the meansspecifically prohibited" by the section. Id., at 108, 78 S.Ct., at 1020. The Courtheld that the legality of the union's conduct is to be viewed at the time of theboycott.

15 Sand Door's holding that employer promises in a collective-bargaining contractprovide no defense to a § 8(b)(4) charge against a union has not been disturbed.In contemplating the 1959 amendments to the Landrum-Griffin Act, Congressviewed that part of Sand Door in which the Court suggested that contractualprovisions having secondary objectives were not forbidden by law as creating aloophole in the Act. Section 8(e) was enacted to close that loophole. SeeNational Woodwork, 386 U.S., at 634, 87 S.Ct., at 1262. Section 8(e), 29U.S.C. § 158(e) (1970 ed., Supp.V), makes it an unfair labor practice, withprovisos, for unions and employers to enter into collective-bargaining contracts

whereby the employer ceases or agrees to cease doing business with any otherperson. Although on its face not limited to agreements having secondaryobjectives, the section was construed by the Board and this Court as onlyclosing the loophole left by Sand Door and as having no broader reach than §8(b)(4) itself. Section 8(e) does not prohibit agreements made for "primary"purposes, including the purpose of preserving for the contracting employeesthemselves work traditionally done by them. 386 U.S., at 635, 87 S.Ct. 1262.

16 By no stretch of the imagination, however, can it be thought, that in enacting §8(e) Congress intended to disagree with or ease Sand Door's construction of §8(b)(4), under which a perfectly legal collective-bargaining contract may not beenforced by a strike or refusal to handle which in the absence of such aprovision would be a violation of the statute. The intention of Congress as tothis aspect of Sand Door could not be clearer. A proviso to § 8(e) exemptedfrom that section certain agreements in the construction industry that the sectionwould otherwise have prohibited, but the Committee Report explained that the"proviso applies only to section 8(e) and therefore leaves unaffected the lawdeveloped under section 8(b)(4)," noting particularly that picketing to enforceagreements saved by the proviso "would be illegal under the Sand Door case."H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 NLRBLegislative History of the Labor-Management and Disclosure Act of 1959, p.943 (1959) (hereafter 1 Leg. Hist.); U.S.Code Cong. & Admin.News 1959, pp.2511. Undoubtedly, Congress embraced the rule then followed by the Boardand approved by this Court in Sand Door that a contract permitting or justifyingthe challenged union conduct is no defense to a § 8(b)(4) charge. To hold, asthe Court of Appeals did, that a work stoppage is necessarily primary and notan unfair labor practice when it aims at enforcing a legal promise in acollective-bargaining contract is inconsistent with the statute as construed inSand Door, a construction that was accepted and that has never been abandonedby Congress.

17 Nor did we modify Sand Door in National Woodwork. The union in NationalWoodwork induced the employees of four contractors not to handle precut andprefitted doors that had arrived at the respective construction sites. In threeinstances, the precut doors had been specified by the architect or the owner; inthe fourth, the decision to use precut doors was that of the immediatecontractor-employer, Frouge Corp. In each case, there was a provision in thecollective-bargaining contract that carpenters would not be required to handleprecut or prefitted doors.7 The General Counsel of the Board filed charges in allfour cases, asserting that the agreements were forbidden by § 8(e) and that therefusal to handle in each case violated § 8(b) (4)(B). The trial examiner, whosefindings were adopted by the Board, concluded that none of the agreements

was invalid on its face but that in seeking to enforce the contract by refusing tohandle in the three situations where the doors had been specified by thearchitect or owner, the union had violated § 8(b)(4)(B). In these situations, thelegality of the contract no more immunized the work stoppage from the § 8(b)(4) charge than would "the then-lawful 'hot-cargo' clause in the Sand Doorcase." Metropolitan Dist. Council of Phila., 149 N.L.R.B. 646, 658 (1964). Onthe other hand, in the Frouge situation, where the choice lay with the contractorwho "therefore was in a position to . . . settle the dispute with the DistrictCouncil by granting its request to assign that work to the carpenters on thejobsite," id., at 659 n. 21, the union was seeking only to regulate the relationsbetween the general contractor and his own employees and to protect alegitimate economic interest of the employees by preserving their unit work.Neither the execution nor the enforcement of the Frouge agreement violated theAct. Only the Frouge decision was appealed. The Court of Appeals for theSeventh Circuit reversed in part, concluding that the Frouge agreement wasprohibited by § 8(e).

18 In reversing the Court of Appeals' § 8(e) holding and agreeing that § 8(b)(4)(B) had not been violated, we held that neither the Frouge contract nor itsmaintenance was illegal. Our rationale was not that the work-preservationprovision was valid under § 8(e) and that therefore it could be enforced bystriking or picketing without violating § 8(b)(4)(B). Expressly recognizing thecontinuing validity of the Sand Door decision that a valid contract does notimmunize conduct otherwise violative of § 8(b)(4), 386 U.S., at 634, we heldthat neither § 8(b)(4)(B) nor § 8(e) forbade primary activity by employeesdesigned to preserve for themselves work traditionally done by them and thaton this basis the union's conduct violated neither section. To determine whetherthe Frouge employees' refusal to handle was permissible primary activity orwas forbidden secondary coercion, we inquired:

19 "(Whether) under all the surrounding circumstances, the Union's objective waspreservation of work for Frouge's employees, or whether the agreements andboycott were tactically calculated to satisfy union objectives elsewhere. Werethe latter the case, Frouge, the boycotting employer, would be a neutralbystander, and the agreement or boycott would, within the intent of Congress,become secondary. There need not be an actual dispute with the boycottedemployer, here the door manufacturer, for the activity to fall within thiscategory, so long as the tactical object of the agreement and its maintenance isthat employer, or benefits to other than the boycotting employees or otheremployees of the primary employer thus making the agreement or boycottsecondary in its aim. The touchstone is whether the agreement or itsmaintenance is addressed to the labor relations of the contracting employer vis-

III

a-vis his own employees." 386 U.S., at 644-645, 87 S.Ct., at 1258 (footnotesomitted).

20 We went on to rule that there was substantial evidence to sustain the finding ofthe Board that both the agreement and the union activity at the Frouge jobsiterelated solely to the preservation of the traditional tasks of the jobsitecarpenters. In consequence, we agreed that there was neither a § 8(b) (4)(B) nora § 8(e) unfair labor practice.

21 There is thus no doubt that the collective-bargaining provision that pipes be cutby hand on the job and that the work be conducted by units of two is not itself asufficient answer to a § 8(b)(4)(B) charge. The substantial question before us iswhether, with or without the collective-bargaining contract, the union's conductat the time it occurred was proscribed secondary activity within the meaning ofthe section. If it was, the collective-bargaining provision does not save it. If itwas not, the reason is that § 8(b)(4)(B) did not reach it, not that it wasimmunized by the contract. Thus, regardless of whether an agreement is validunder § 8(e), it may not be enforced by means that would violate § 8(b)(4).8

22 The Court of Appeals was also of the view that the Board's "control" test, underwhich the union commits an unfair labor practice under § 8(b)(4)(B) when itcoerces an employer in order to obtain work that the employer has no power toassign, is invalid as a matter of law because it fails to comply with the NationalWoodwork standard that the union's conduct be judged in light of all therelevant circumstances. Again, we think the Court of Appeals was in error.

23 As we have seen, in National Woodwork the Board found unfair labor practicesin three instances by inferring an improper secondary objective from the factthat the work sought by the union was not under the control of the immediateemployer, but it found no unfair practice in the Frouge situation because Frougedid have the power to settle the dispute with the union. In sustaining the Boardwith respect to Frouge and in posing the issue whether under all thecircumstances the boycott was tactically calculated to satisfy union objectiveselsewhere, we did not purport to announce a new legal standard and thenourselves to assess the facts in light of the modified construction of the statute.Such an assessment would have been a more proper task for the Board in thefirst instance;9 yet there was no remand for further proceedings in the light of anewly fashioned standard. The Board had sustained the trial examiner, who hadexamined the facts to determine whether the agreement and boycott hadsecondary objectives and concluded that they did not. This Court simply

sustained the Board's findings as supported by substantial evidence, withoutquestioning either the legal standard employed by the Board or the Board'sresolution of the facts under that standard. Furthermore, the Court expresslyrecognized that as the case came to it, no question was raised about the resultswith respect to the three contractors other than Frouge. 386 U.S., at 616-617, n.3, 87 S.Ct. at 1253-1254.

24 Here, the Administrative Law Judge, cognizant of National Woodwork and theBoard's own precedents, examined the history both of the relevant jobsite worktraditionally done by the steamfitters and of the contractual provision callingfor jobsite cutting and threading of pipe, assessed the agreement and refusal tohandle in light of the actual conditions in the New York market, and concludedthat " 'under all the surrounding circumstances,' " Hudik was "only a means orinstrumentality for exerting pressure against Slant/Fin and Austin with whomthe Union has its primary dispute."10 It thus does not appear to us that either theAdministrative Law Judge or the Board, in agreeing with him, articulated adifferent standard from that which this Court recognized as the proper test inNational Woodwork.11

25 Nor is it the case that the Board, in applying its control standard, failed toconsider all of the relevant circumstances. Surely the fact that the Boarddistinguishes between two otherwise identical cases because in the one theemployer has control of the work and in the other he has no power over it doesnot indicate that the Board has ignored any material circumstance. The contrarymight more rationally be inferred. Of course, the Board may assign to thepresence or absence of control much more weight than would the Court ofAppeals, but this far from demonstrates a departure from the totality-of-the-circumstances test recognized in National Wordwork.12

26 There is little or no basis in the statute, its legislative history, or our cases forthe Court of Appeals' conclusion that the distinction the Board has drawnbetween those cases where the struck employer is in position to deliver thework to the union and those where the work is controlled by others is erroneousas a matter of law. The Board has taken this approach in applying § 8(b)(4) atleast since 1958, when it decided Clifton Deangulo, 121 N.L.R.B. 676. In thatcase, the facts of which were similar to this one, Limbach, a plumbing andheating contractor, was engaged to install certain comfort induction units. Theunion claimed that certain provisions in its collective-bargaining agreementwith Limbach reserved to its members much of the work that had beenperformed at the factory on these units. Therefore, at the union's behest, theemployees refused to handle the units. Relying on its decision in the Sand Doorcase, Local 1976, United Brotherhood of Carpenters & Joiners, 113 N.L.R.B.

1210 (1955), and ruling against the union, the Board rejected the union's "maincontentions . . . that the dispute was with Limbach, who was the primaryemployer; that the Union was seeking merely to exercise a valid contractualright to which Limbach had voluntarily agreed in advance, and that it wastherefore engaged in privileged primary activity, not in proscribed secondaryactivity." 121 N.L.R.B., at 684. The Board also observed that Limbach "hadgiven to union members all work within the Union's jurisdiction which it hadbeen awarded on the project. It was powerless, of course, to give themadditional work which it had not obtained and which, in fact, had been reservedby the very contractor through whom it had derived its own standing as anemployer on the job." Id., at 685-686.

27 Since that time, as its decision in National Woodwork exemplifies, the Boardhas continued to interpret and apply s 8(b)(4)(B) to find an unfair laborpractice, at least where the union employs a product boycott to claim work thatthe immediate employer is not in a position to award,13 and it has declined tofind a violation where the employer has such power, even if awarding the workmight cause him to terminate contractual relations with another employer.14 Inthe latter circumstances, the cease-doing-business consequences are merelyincidental to primary activity, but not in the former where the union, if it is toobtain work, must intend to exert pressure on one or more other employers.

28 No legislative disagreement with the Board's interpretation of § 8(b)(4) wasexpressed in 1959 when Congress amended the section. On the contrary, inadding the primary-secondary proviso to the section, as the relevant reportsclearly show, Congress intended merely to reflect the existing law. "Thisprovision does not eliminate, restrict, or modify the limitations on picketing atthe site of a primary labor dispute that are in existing law." H.R.Conf.Rep. No.1147, 86th Cong., 1st Sess., 38 (1959), 1 Leg.Hist. 942, U.S.Code Cong. &Admin.News 1959, p. 2510.

29 Furthermore, the Courts of Appeals regularly sustained the relevant Boardinterpretations of § 8(b)(4), and we did not question the Board's approach inNational Woodwork, let alone overrule it sub silentio. It is true that since ourdecision in that case some Courts of Appeals, like the Court of Appeals for theDistrict of Columbia Circuit, have concluded that the Board's interpretation ofthe statute is in error.15 The Board's reading and application of the statuteinvolved in this case, however, are long established, have remained undisturbedby Congress, and fall well within that category of situations in which the courtsshould defer to the agency's understanding of the statute which it administers.See Bayside Enterprises v. NLRB, 429 U.S. 298, 303-304, 97 S.Ct. 576, 580-581, 50 L.Ed.2d 494 (1977); NLRB v. Boeing Co., 412 U.S. 67, 75, 93 S.Ct.

IV

1952, 1957, 36 L.Ed.2d 752 (1973); NLRB v. United Insurance Co. ofAmerica, 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Udallv. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); SandDoor, 356 U.S., at 107, 78 S.Ct., at 1020.

30 Wholly apart from its determination that the union's conduct was justified as ameasure to enforce its collective-bargaining contract and that the Board appliedan incorrect standard for determining liability, the Court of Appeals held thatsince there was "no substantial evidence . . . in this record that the union'spurpose was also 'to satisfy union objectives elsewhere,' the Board's decisionholding the union guilty of a Section 8(b)(4)(B) violation may not stand." 172U.S.App.D.C., at 244, 521 F.2d, at 904. We disagree.

31 That there existed inducement and coercion within the meaning of § 8(b)(4) isnot disputed. The issue is whether "an object" of the inducement and thecoercion was to cause the cease-doing-business consequences prohibited by §8(b)(4), the resolution of which in turn depends on whether the product boycottwas "addressed to the labor relations of (Hudik) . . . vis-a-vis his ownemployees," National Woodwork, 386 U.S., at 645, 87 S.Ct., at 1268, orwhether the union's conduct was "tactically calculated to satisfy (its) objectiveselsewhere," id., at 644, 87 S.Ct., at 1268.16

32 There is ample support in the record for the Board's resolution of this question.The union sought to enforce its contract with Hudik by a jobsite productboycott by which the steamfitters asserted their rights to the cutting andthreading work on the Norwegian Home project. It is uncontrovertible that thework at this site could not be secured by pressure on Hudik alone and that theunion's work objectives could not be obtained without exerting pressure onAustin as well. That the union may also have been seeking to enforce itscontract and to convince Hudik that it should bid on no more jobs wereprepiped units were specified does not alter the fact that the union refused toinstall the Slant/Fin units and asserted that the piping work on the NorwegianHome job belonged to its members.17 It was not error for the Board to concludethat the union's objectives were not confined to the employment relationshipwith Hudik but included the object of influencing Austin in a manner prohibitedby § 8(b)(4)(B).18

33 The Court of Appeals was of the view that other inferences from the facts werepossible. The court, for example, could "clearly see that it was possible forHudik-Ross to settle the labor dispute which it had created. The record is void

of any suggestion that Hudik-Ross attempted to negotiate a compromise withthe union under which the union would have agreed to install the climatecontrol units in exchange for extra pay or other special benefits." 172U.S.App.D.C., at 239, 521 F.2d, at 899. How this observation impugns theBoard's finding with respect to the union's object is not clear. The union simplyrefused to handle the Slant/Fin units and asserted that under the contract thecutting and threading work belonged to them. The commonsense inferencefrom these facts is that the product boycott was in part aimed at securing thecutting and threading work at the Norwegian Home job, which could only beobtained by exerting pressure on Austin.

34 The statutory standard under which the Court of Appeals was obliged to reviewthis case was not whether the Court of Appeals would have arrived at the sameresult as the Board did, but whether the Board's findings were "supported bysubstantial evidence on the record considered as a whole." 29 U.S.C. § 160(e).See NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684,100 L.Ed. 975 (1956); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Consolidated Edison Co. v. NLRB, 305U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). It appears to us that inreweighing the facts and setting aside the Board's order, the Court of Appealsimproperly substituted its own views of the facts for those of the Board.

The judgment of the Court of Appeals is

35 Reversed.

36 Mr. Justice BRENNAN, with whom Mr. Justice STEWART (except for PartV) and Mr. Justice MARSHALL join, dissenting.

37 I dissent. Today's holding that union members exert secondary pressure inviolation of § 8(b)(4)(B) of the National Labor Relations Act by striking theirown employer to protest his conceded violation of a lawful work-preservationprovision in the parties' collective-bargaining agreement is patently precludedby National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18L.Ed.2d 357 (1967).

38 * Briefly to summarize the facts detailed in the Court's opinion, the collective-bargaining agreement between respondent union and Hudik-Ross Co. (Hudik),a heating and air-conditioning contractor, included a provision that Hudik'semployees represented by the union would cut and thread the internal piping inthe climate-control units installed by Hudik. This is concededly work

II

traditionally performed by them. Hudik, however, on obtaining a subcontractfrom the Austin Co. to install climate-control units, agreed with Austin toinstall prefabricated units manufactured by Slant/Fin Corp., whose employeeshad cut and threaded the internal piping before the units were delivered to thejobsite. The union thereupon informed both Hudik and Austin that, because ofHudik's breach of the collective-bargaining agreement, its members would notinstall the units.

39 The National Labor Relations Board concluded that the union's refusal to installthe units constituted "prohibited pressure on Hudik with an object of eitherforcing a change in Austin's manner of doing business or forcing Hudik toterminate its subcontract with Austin," and was therefore secondary pressureprohibited by § 8(b)(4)(B). Enterprise Assn. of Pipefitters, 204 N.L.R.B. 760(1973) (as amended by order of Aug. 30, 1973). The Board conceded that therefusal "was based on a valid work preservation clause in the agreement withHudik . . . and was for the purpose of preserving work (the union's members)had traditionally performed," ibid., but found nevertheless that the pressure wassecondary because the union's primary dispute was necessarily with Austin,since Austin, and not Hudik, was in a position to control the assignment of theinternal piping work, and therefore that Hudik, lacking such control, was amere neutral in the dispute. The Court of Appeals for the District of ColumbiaCircuit, sitting en banc, rejected that analysis, 172 U.S.App.D.C. 225, 521 F.2d885 (1975), but the Court adopts it.

40 The Court's result cannot be squared with National Woodwork Mfrs. Assn. v.NLRB, supra, whose totality-of-the-circumstances test the Court purports toapply. Ante, at 524. That case and this are virtually indistinguishable in relevantrespects. The contractor in National Woodwork ordered precut and prefitteddoors in violation of a collective-bargaining provision that doors would be cutand fitted by its own employees at the jobsite. When the workers refused tohang the doors, charges were filed alleging that the initial agreement violated §8(e) of the NLRA as an agreement "whereby (the) employer . . . agrees to ceaseor refrain from handling . . . any of the products of any other employer," andthat union pressure to enforce it violated § 8(b)(4) (B), as pressure intended toforce the employer "to cease using . . . the product of any other . . .manufacturer. . . . "1

41 The Court had no difficulty in rejecting this overliteral interpretation of the Act.The legislative history of the relevant sections, read in the context of theevolution of national labor policy, demonstrated that the Taft-Hartley

prohibition of secondary boycotts, as refined by the Landrum-GriffinAmendments, had adopted the traditional distinction between primary andsecondary activity, prohibiting the latter and permitting the former:

42 "Congress, in enacting § 8(b)(4)(A) of the Act, returned to the regime ofDuplex Printing Press Co. (v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed.349 (1921),) and Bedford Cut Stone Co. (v. Journeyman Stone Cutters' Assn.,274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (1927),) and barred as a secondaryboycott union activity directed against a neutral employer, including theimmediate employer when in fact the activity directed against him was carriedon for its effect elsewhere." 386 U.S., at 632, 87 S.Ct., at 1262.

43 While "(t)his will not always be a simple test to apply," id., at 645, 87 S.Ct., at1269, it is the test that Congress intended, and it has deep roots in the history ofAmerican labor policy.

44 National Woodwork exemplifies application of the test in precisely the factualcontext of the instant case: a dispute over the application of a negotiated work-preservation rule to the use of prefabricated materials in the constructionindustry. The crux of National Woodwork is the following passage:

45 "The determination whether the 'will not handle' sentence of Rule 17 and itsenforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without aninquiry into whether, under all the surrounding circumstances, the Union'sobjective was preservation of work for Frouge's employees, or whether theagreements and boycott were tactically calculated to satisfy union objectiveselsewhere. Were the latter the case, Frouge, the boycotting employer, would bea neutral bystander, and the agreement or boycott would, within the intent ofCongress, become secondary. There need not be an actual dispute with theboycotted employer, here the door manufacturer, for the activity to fall withinthis category, so long as the tactical object of the agreement and itsmaintenance is that employer, or benefits to other than the boycottingemployees or other employees of the primary employer thus making theagreement or boycott secondary in its aim. The touchstone is whether theagreement or its maintenance is addressed to the labor relations of thecontracting employer vis-a -vis his own employees." Id., at 644-645, 87 S.Ct.,at 1268 (footnotes omitted).

46 Two principles follow from this passage. First, §§ 8(b)(4)(B) and 8(e) prohibitonly conduct which is secondary, as that term has generally been understood inAmerican labor law. If the purpose of a contract provision, or of economic

III

pressure on an employer, is to secure benefits for that employer's ownemployees, it is primary; if the object is to affect the policies of some otheremployer toward his employees, the contract or its enforcement is secondary.Second, work preservation is necessarily a primary goal. Pressure undertaken inorder to preserve work traditionally performed by unit members aims atbenefits for those members, and centers on a conflict between the employeesand their employer, which, although it has secondary effects on otheremployers, as does the use of almost any economic weapon in a labor dispute,can only be regarded as primary. Thus, if a contract clause is intended topreserve work, its objective, and the objective of pressure to enforce it, isprimary, and therefore legitimate. Only if examination of "all the surroundingcircumstances" indicated that the purpose of the clause is not workpreservation, but rather "to satisfy union objectives elsewhere," would theprovision violate § 8(e) and its enforcement by economic pressure violate §8(b)(4)(B).

47 The Court's acknowledgment that these principles must control the result hererings hollow in the face of its conclusion. For here, as in National Woodwork,the Board found that the union's actions were taken "for the purpose ofpreserving work (its members) had traditionally performed." 204 N.L.R.B., at760. Cf. 386 U.S., at 645-646, 87 S.Ct., at 1268-1269. It defies reality to denythat the union's principal dispute was with Hudik, the immediate employer ofits members. It was Hudik which had acceded to the union's demand for thework-preservation clause particularly desired by its employees for their ownprotection. And it was Hudik which breached that clause. Nothing whatever inthe record even remotely suggests that the union had any quarrel with Slant/Finor Austin. Those companies were simply the vehicles used by Hudik to effectthe breach which created the primary dispute between it and its own employeesand their union. Nor is there the slightest basis for a suggestion that the truepurpose of the work-preservation clause or the pressure applied to enforce itwas to benefit employees "other than the boycotting employees or otheremployees of (Hudik)." Id., at 645, 87 S.Ct., at 1268. Rather, the Board foundthat the purpose of the job action was "preserving work (the boycottingemployees) had traditionally performed" for Hudik.2 Since the purpose of theunion's pressure was, by the Board's own finding, work preservation, and sinceNational Woodwork holds that work preservation is a legitimate primaryobjective, the only possible conclusion on this record is that the pressure herewas primary, and not prohibited by § 8(b)(4)(B).

48 Nor is National Woodwork distinguishable, as contended, because Austin, and

not Hudik, had the "right to control" the assignment of the work of cutting andthreading the internal piping. Any conclusion from this that the union's pressuremust have been directed at Austin and not Hudik is totally inconsistent with thepremises and conclusion of National Woodwork.3 First, Hudik was by nomeans a "neutral" in the sense contemplated by Congress as warranting orrequiring protection. See 386 U.S., at 624-628, 87 S.Ct., at 1257-1260. Hudikmade the agreement with its employees to satisfy their deep concern for workpreservation. But in defiance of its obligations voluntarily assumed, Hudikaccepted a subcontract knowing that it disabled it from keeping the bargain. Itcompletely escapes me how Hudik can be said to be the neutral, and Austin thetarget, on those facts, particularly in face of the Board's finding that the work-preservation clause was primary and not prohibited by § 8(e). Thus had theunion been forced to strike Hudik to get the agreement, the strike would clearlyalso have been primary and not prohibited by § 8(b)(4)(B). How, then, couldHudik become a neutral by violating the clause after agreeing to it? The Boarddid not find that the union's insistence upon compliance with the legitimatework-preservation agreement was a pretext to apply pressure against Austin insome unrelated dispute; on the contrary, the Board found that the purpose ofthe job action, as well as of the original agreement, was work preservation. It issimply impossible to conclude that anyone but Hudik was the target of thatpressure.

49 Second, it is not true that Hudik was a neutral because it was powerless to dealwith the union demands. As the Court of Appeals pointed out, if the union'spurpose is truly work preservation for the benefit of its own members, itpresumably would be willing to negotiate some substitute for full compliance,such as premium pay, to replace the lost work. Nothing in this record indicatesthat Hudik made any attempt to reach that or any other compromise solution,and there is no reason to think that the union would not have been satisfied withsuch a result.4 Moreover, in the long run, only Hudik could deal with the uniondemands, for it alone could decide to comply with the collective-bargainingagreement in the future. The union could certainly have reasoned that afterHudik knowingly breached its contract even if at that time Hudik had no powerto undo the breach union pressure was necessary to deter Hudik from repeatingits breach of the work-preservation agreement in the future.

50 Third, there is no basis in the record for the conclusion that Austin should beregarded as the "real" target of the union's pressure. The union had no quarrelwith Austin, as far as the record shows, except for the artificial one erected bytoday's unpersuasive reasoning based upon the subcontract to Hudik. There isno indication, for example, that the union represented any employees of Austin,or even that it was engaged in any general effort to prevent Austin from

IV

specifying installation of prefabricated climate-control units in all its projects.Further, nothing in the record suggests that the union's reaction would havebeen different had someone other than Austin made the decision to useprefabricated units; whether Hudik accomplished the wrong to its employees bycontracting with Austin, or simply by independently ordering prefabricatedunits, could make no difference to the injured employees. Either way, theirobjective, as the Board found, was work preservation, and their grievance waswith Hudik, and no one else.

51 The Court is wholly in error in treating the case as one of a factual finding bythe Board to be treated with deference by us that Austin was the target of theunion's pressure. The facts are not in dispute. The Board found that the reasonfor the union's refusal to install the prefabricated units was work preservation,but nevertheless concluded that this refusal was prohibited secondary pressurebecause Austin, not Hudik, had the "right to control" the disputed work, andbecause the union notified Austin, as well as Hudik, of its actions. "Right tocontrol" may, in some circumstances, be relevant to the "inquiry into whether,under all the surrounding circumstances, the (u) nion's objective waspreservation of work for (the pressured employer's) employees, or whether the(union pressure was) tactically calculated to satisfy union objectiveselsewhere." National Woodwork, 386 U.S., at 644, 87 S.Ct., at 1268. But oncethe Board determined that the union's object was preservation of work itsmembers had traditionally performed for Hudik, its factfinding task wascompleted. The Board concluded that despite this finding, Austin's "right tocontrol" the disputed work required the conclusion that Austin was the union'starget. This was an error of law, not a factual finding.5

52 The Court maintains that the collective-bargaining agreement betweenEnterprise and Hudik is irrelevant to the determination of whether the unionexerted primary or secondary pressure, relying on Carpenters v. NLRB, 357U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) (Sand Door ). With all respect,this totally misapprehends the relevance of the agreement to the issue before us,and misapplies Sand Door.

53 In Sand Door, the union ordered its members not to handle doors ordered bytheir employer from a nonunion manufacturer. The manufacturer chargedsecondary pressure aimed at it, and the union defended on the ground that thestrike was its response to the employer-contractor's breach of a provision intheir collective-bargaining agreement that "workmen shall not be required tohandle non-union material," and therefore primary pressure. The Court held

V*

that, although the collective-bargaining provision was not illegal,6 pressure toenforce it was prohibited secondary pressure.7

54 Thus, Sand Door holds that pressure to enforce a secondary boycott clauseremains secondary, despite the then legality of the clause itself; it is notauthority that union pressure to enforce a concededly primary work-preservation clause (which, since the enactment of § 8(e), is legal only becauseit is primary), is anything but primary pressure.8 The union here does not argue,as in Sand Door, that pressure otherwise secondary is magically transformedinto primary pressure by an employer's prior agreement to support a secondaryboycott. Rather, §§ 8(b)(4) and 8(e) are "to be taken pari passu," NationalWoodwork, supra, 386 U.S., at 649, 87 S.Ct., at 1270. (Harlan, J., concurring),so that pressure to enforce an employer to honor a clause of a collective-bargaining agreement admittedly primary, because intended to preserve worktraditionally performed by unit members, is also primary.9 In short, theagreement in this case, as the Board found, was for a primary purpose; pressurebrought to compel Hudik to agree to it would have been primary; and pressurebrought to enforce it when Hudik breached it, whether by orderingprefabricated units himself, as in National Woodwork, or by entering a contractthat required it to breach it, was no less primary.

55 Technological change has threatened the stability of jobs in a number ofindustries. Workers in those industries are understandably concerned about thepossibility that new technological advances or increased reliance onprefabricated materials will render their skills superfluous, and eliminate theirjobs, and have sought reassurance against those fears from their employersthrough collective bargaining. It might be argued that in the long run thenational interest is better served by permitting technological change to proceedat its own pace, unhampered by the demands of labor, and that the problems ofworkers threatened with unemployment by such "progress" can be better dealtwith by some other method than collective bargaining. But it is for Congress,not the Court, to decide how this problem is best solved. National Woodwork,386 U.S., at 644, 87 S.Ct., at 1268; id., at 649-650, 87 S.Ct., at 1270-1271(Harlan, J., concurring). And the Court has consistently recognized that thenational labor policy adopted by Congress is for "management and laborvoluntarily to negotiate for solutions to these significant and difficultproblems." Id., at 640, 87 S.Ct., at 1266. See also Fibreboard Paper ProductsCorp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Today'sdecision undermines this policy by permitting an employer which hasvoluntarily agreed to a work-preservation clause to subvert that agreement by

Section 8(b) of the National Labor Relations Act, as set forth in 29 U.S.C. §158(b), provides in relevant part:

"It shall be an unfair labor practice for a labor organization or its agents

"(4)(i) to engage in, or to induce or encourage any individual employed by anyperson engaged in commerce or in an industry affecting commerce to engage in,a strike or a refusal in the course of his employment to use, manufacture,process, transport, or otherwise, handle or work on any goods, articles,materials, or commodities or to perform any services; or (ii) to threaten, coerce,or restrain any person engaged in commerce or in an industry affectingcommerce, where in either case an object thereof is

"(B) forcing or requiring any person to cease using, selling, handling,transporting, or otherwise dealing in the products of any other producer,processor, or manufacturer, or to cease doing business with any other person, orforcing or requiring any other employer to recognize or bargain with a labororganization as the representative of his employees unless such labororganization has been certified as the representative of such employees underthe provisions of section 159 of this title: Provided, That nothing contained inthis clause (B) shall be construed to make unlawful, where not otherwiseunlawful, any primary strike or primary picketing."

The pre- and post-1959 developments are fully canvassed in NationalWoodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357(1967).

"assigning to another party the rights (it) guaranteed to (its) own employees."Note, Secondary Boycotts and Work Preservation, 77 Yale L.J. 1401, 1417(1968). This is surely a serious setback for national labor policy, and hardlyconducive to labor peace.

56 Mr. Justice STEWART, dissenting.

57 I disagreed with the Court in National Woodwork Mfrs. Assn. v. NLRB, 386U.S. 612, 650, 87 S.Ct. 1250, 1271, 18 L.Ed.2d 357. Until that decision isoverruled, however, it stands as an authoritative construction of § 8(b)(4)(B) ofthe National Labor Relations Act. For the reasons stated in Mr. JusticeBRENNAN'S dissenting opinion, I agree that the Court's decision today is"patently precluded" by the National Woodwork case. On that basis I join allbut Part V of Mr. Justice BRENNAN'S dissenting opinion.

1

2

The facts here stated are taken from the findings made by the AdministrativeLaw Judge and adopted by the Board. Enterprise Assn. of Steam Pipefitters,204 N.L.R.B. 760 (1973).

Rule IX provided in relevant part:

"Radiator branches, convector branches and coil connections shall be cut andthreaded by hand on the job in accordance with Rule V." App. 89.

Rule V provided:

"MEN TO WORK IN UNITS OF TWO

"All work to be performed within the jurisdiction of Enterprise Associationmust be performed by journeymen steamfitters or apprentices working in unitsof two, one of whom must be a steamfitter. A unit shall be composed of:

"A. Steamfitter with a steamfitter, or

"B. Steamfitter with an apprentice." Id., at 87-88.

For a discussion of the decisions of the Courts of Appeals on the issuespresented in this case see n. 15, infra.

Section 8(b)(4)(A) was renumbered as § 8(b)(4)(B) in 1959. As we shall see, nosubstantive changes made by the 1959 amendments had any effect on the ruleestablished in Sand Door.

Part of the same contractual rule provided that " '(n)o employee shall work onany job on which cabinet work, fixtures, millwork, sash, doors, trim or otherdetailed millwork is used unless the same is Union-made and bears the UnionLabel of the United Brotherhood of Carpenters and Joiners of America.' "National Woodwork, 386 U.S., at 615 n. 2, 87 S.Ct., at 1253 n. 2. The Boardfound that this sentence violated § 8(e). This finding, consistent with prevailinglaw, was not challenged by the union. See, e. g., NLRB v. AmalgamatedLithographers of America, 309 F.2d 31, 35-36 (C.A.9 1962), cert. denied, 372U.S. 943, 83 S.Ct. 936, 9 L.Ed.2d 968 (1963); Employing Lithographers ofGreater Miami v. N.L.R.B., 301 F.2d 20, 29-30 (C.A.5 1962).

The validity of the will-not-handle provision in this case was not challenged bythe charging party, and the Board referred to it as a valid provision. Because thescope of the prohibitions in §§ 8(b)(4)(B) and 8(e) are essentially identical,except where the proscriptions in § 8(e) are limited by the provisos in thatsection, the Court of Appeals regarded as anomalous that a valid provision in a

3

4

5

6

7

8

collective-bargaining contract could not be enforced through economic pressureexerted by the union. This conclusion ignores the substance of our decision inSand Door. Even though a work-preservation provision may be valid in itsintendment and valid in its application in other contexts, efforts to apply theprovision so as to influence someone other than the immediate employer areprohibited by § 8(b)(4)(B). See George Koch Sons, Inc. v. NLRB, 490 F.2d323, 327 (C.A.4 1973).

Nor does the Board's decision undermine the collective-bargaining process asthe Court of Appeals suggests. In appropriate circumstances, the Board has notfound the lack of control to be determinative, Painters Dist. Council No. 20(Uni-Coat), 185 N.L.R.B. 930 (1970), and the Board has declared its intentionto continue to eschew a mechanical application of its control test in order toascertain whether the struck employer is truly an unoffending employer. SeeLocal 438, United Pipe Fitters (George Koch Sons, Inc.), 201 N.L.R.B. 59, 64(1973).

"(A)n administrative order cannot be upheld unless the grounds upon which theagency acted in exercising its powers were those upon which its action can besustained." SEC v. Chenery Corp., 318 U. S. 80, 95, 63 S.Ct. 454, 462, 87L.Ed. 626 (1943). This rule has not been disturbed. See FPC v. Texaco, Inc.,417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974); FTC v. Sperry& Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170(1972); K. Davis, Administrative Law Treatise § 16.01, p. 397 (Supp.1976).When an administrative agency has made an error of law, the duty of the Courtis to "correct the error of law committed by that body, and, after doing so toremand the case to the (agency) so as to afford it the opportunity of examiningthe evidence and finding the facts as required by law." ICC v. Clyde S.S. Co.,181 U.S. 29, 32-33, 21 S.Ct. 512, 514, 45 L.Ed. 729 (1901).

204 N.L.R.B., at 764. The Administrative Law Judge concluded that Austinand Slant/Fin were primary employers. The Board, while adopting theremainder of the Administrative Law Judge's report, did not reach this question.

The Board addressed the question in George Koch Sons, Inc., supra. The Boardrecognized that there had been some ambiguity on this issue in earlierdecisions.

"Specifically, of late, the Board has characterized its approach simply in termsof a right-of-control test. The test as stated would seem to imply that the Boardlooked solely at the pressured employer's 'contract right to control' the work atissue at the time of the pressure to determine whether that pressure was primaryor secondary. In fact, this is not now the Board's approach nor was it ever.

9

10

11

"Rather, the Board has always proceeded with an analysis of (1) whether underall the surrounding circumstances the union's objective was work preservationand then (2) whether the pressures exerted were directed at the right person,i.e., at the primary in the dispute. . . . In following this approach, however, ouranalysis has not (been) nor will it ever be a mechanical one, and, in addition todetermining, under all the surrounding circumstances, whether the union'sobjective is truly work preservation, we have studied and shall continue tostudy not only the situation the pressured employer finds himself in but alsohow he came to be in that situation. And if we find that the employer is nottruly an 'unoffending employer' who merits the Act's protections, we shall findno violation in a union's pressures such as occurred here, even though a purelymechanical or surface look at the case might present an appearance of a parallelsituation." 201 N.L.R.B., at 64 (footnotes omitted).

The Board also adopted the Administrative Law Judge's discussion of theeconomic context in which the dispute arose.

The Administrative Law Judge was of the view that union pressure on Austinand other contractors who preferred factory-piped units could effectivelyforeclose Slant/Fin and similar producers from the market. The Board did notdisturb the Administrative Law Judge's findings:

"If prepaid units cannot be installed in the large commercial, public, andindustrial buildings in the New York area or in other areas effectively organizedby the Union and other building trades unions, the manufacture will bematerially affected and Austin and other engineers and general contractors willnot specify their purchase and use in buildings." 204 N.L.R.B., at 764.

"In my opinion, it is an appropriate subject of official notice that in New YorkCity, and probably in all or most of the major cities in this country, the buildingand construction industry is unionized, certainly with respect to majorindustrial, commercial, and public construction. Unionized in this contextmeans that craft unions affiliated with the AFL-CIO represent and havecontracts for the employees who work on such projects and, in fact, the unionsare the source of the labor supply and furnish the employees to the employer-contractors. The strategic position of the unions in the industry is confirmed bythe fact that governmental efforts to increase the number of minority employeesin the industry are concentrated on the unions and not on the employers. Inmost industries, if it is desired to increase the number of minority employees,governmental pressure is effectively directed to the employers. But in theconstruction industry it is the unions that control the labor supply and if theunion steamfitter employees of Hudik on the Norwegian job refuse to work,other steamfitters will not be available to Hudik or to anyone else to perform

12

work on the job." Id., at 764 n. 10.

See, e. g., George Koch Sons, Inc., supra; International Assn. of Heat & FrostInsulators, Local 12, 193 N.L.R.B. 40 (1971); Enterprise Assn., Local 638, 183N.L.R.B. 516 (1970); Local 742, Carpenters, 178 N.L.R.B. 351 (1969); Local636, Plumbers & Pipefitters, 177 N.L.R.B. 189 (1969); Pipe Fitters Local No.120, 168 N.L.R.B. 991 (1967); International Assn. of Heat & Frost Insulators,Local 53, 149 N.L.R.B. 1075 (1964); Ohio Valley Carpenters Dist. Council,144 N.L.R.B. 91 (1963); International Longshoremen's Assn., 137 N.L.R.B.1178 (1962); Local 5, United Assn. of Journeymen, 137 N.L.R.B. 828 (1962);Enterprise Assn., Local 638, 124 N.L.R.B. 521 (1959); Local 636, United Assn.of Journeymen, 123 N.L.R.B. 225 (1959).

See, e. g., Pipe Fitters Local No. 120, supra, at 992; Metropolitan Dist. Councilof Phila., 149 N.L.R.B. 646, 659 n. 21 (1964) (National Woodwork).

Prior to this Court's decision in National Woodwork, the Courts of Appeals haduniformly held that it was a violation of § 8(b)(4)(B) for a union to useeconomic pressures to obtain work that was not within the struck employer'spower to award. See Ohio Valley Carpenters Dist. Council v. NLRB, 339 F.2d142 (C.A.6 1964); NLRB v. Int'l Longshoremen's Assn., 331 F.2d 712 (C.A.31964); Local No. 5, United Assn. of Journeymen v. NLRB, 116 U.S.App.D.C.100, 321 F.2d 366, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165(1963); NLRB v. Enterprise Assn., 285 F.2d 642 (C.A.2 1960); Local No. 636,United Assn. of Journeymen v. NLRB, 108 U.S.App.D.C. 24, 278 F.2d 858(1960). Generally, the Courts of Appeals did not treat the Board's control test asa per se rule, reasoning instead that the absence of the right to control the worksought is strong evidence that the objective of the economic pressure beingapplied by the union is to affect someone other than the struck employer.

In many of the pre-National Woodwork cases the unions argued that theiractivity was primary on the ground that they were merely enforcing valid work-preservation agreements. The Courts of Appeals uniformly rejected thisargument for a variety of reasons. Two of the pre-National Woodwork casesflatly held that the existence of a valid work-preservation agreement cannotvalidate conduct that otherwise would be unlawful under § 8(b)(4)(B). OhioValley Carpenters, supra, 339 F.2d, at 145; Local No. 5, supra, 321 F.2d, at369-370.

Since this Court's decision in National Woodwork, six Circuits have addressedthe control issue. The Fourth Circuit in a well-reasoned opinion has expresslysustained the Board's control test. George Koch Sons, Inc. v. NLRB, 490 F.2d323 (1973). The Ninth Circuit has done the same. See Associated General

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Contractors of California v. NLRB, 514 F.2d 433 (1975). But see WesternMonolithics Concrete Products v. NLRB, 446 F.2d 522 (C.A.9 1971).

The Third, Eighth, and District of Columbia Circuits have rejected the Board'scontrol theory. In addition to the District of Columbia Circuit's opinion in thepresent case, see Local No. 636, United Assn. of Journeymen v. NLRB, 139U.S.App.D.C. 165, 430 F.2d 906 (1970); American Boiler Mfrs. Assn. v.NLRB, 404 F.2d 556 (C.A.8 1968); NLRB v. Local 164, Int'l Brotherhood ofElectrical Workers, 388 F.2d 105 (C.A.3 1968). The First Circuit has said thesame thing in dictum. Beacon Castle Square Bldg. Corp. v. NLRB, 406 F.2d188 (1969).

The dissenters now assert a different definition of what constitutes prohibitedsecondary activity:

"If the purpose of a contract provision, or of economic pressure on an employer,is to secure benefits for that employer's own employees, it is primary; if theobject is to affect the policies of some other employer

toward his employees, the contract or its enforcement is secondary." Post, at535.

National Woodwork did not, however, adopt this standard for applying theproscriptions of § 8(b)(4)(B). The distinction between primary and secondaryactivity does not always turn on which group of employees the union seeks tobenefit. There are circumstances under which the union's conduct is secondarywhen one of its purposes is to influence directly the conduct of an employerother than the struck employer. In these situations, a union's efforts to influencethe conduct of the nonstruck employer are not rendered primary simplybecause it seeks to benefit the employees of the struck employer. NationalWoodwork itself embraced the view that the union's conduct would besecondary if its tactical object was to influence another employer:

"There need not be an actual dispute with the boycotted employer, here the doormanufacturer, for the activity to fall within this category, so long as the tacticalobject of the agreement and its maintenance is that employer, or benefits toother than the boycotting employees or other employees of the primaryemployer thus making the agreement or boycott secondary in its aim."(Emphasis added.) 386 U.S., at 645, 87 S.Ct., at 1268.

Under the standard announced, we found no unfair labor practice in NationalWoodwork. Frouge, the struck employer, was faced with the choice of eithergiving the cutting and fitting work to its own employees or giving it to the doormanufacturer. Cf. Fibreboard Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13

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L.Ed.2d 233 (1964). The Court sustained the Board's finding that the union'ssole object was to influence Frouge to give the work to its own employees. Theunion thus had no object of influencing the door manufacturer, even though anyinfluence that the union had on Frouge would have had an incidental effect onpersons with whom Frouge had commercial dealings. Cf. NLRB v. OperatingEngineers, 400 U.S. 297, 304, 91 S.Ct. 402, 407, 27 L.Ed.2d 398 (1971)("Some disruption of business relationships is the necessary consequence of thepurest form of primary activity").

The National Woodwork opinion also noted that the Court then had nooccasion "to decide the questions which might arise where the workers carry ona boycott to reach out to monopolize jobs or acquire new job tasks." 386 U.S.,at 630-631, 87 S.Ct., at 1261. That reservation was apparently meaningless, forunder the theory of the dissent, seemingly derived from National Woodworkitself, striking workers may legally demand that their

employer cease doing business with another company even if the union's objectis to obtain new work so long as that work is for the benefit of the strikingemployees. If, for example, Hudik had in the past used prepiped units withoutopposition from the union, and the union had demanded that Hudik not fulfillits contract with Austin on the Norwegian Home job all for the benefit of Hudikemployees it would appear that the dissenters' approach would exonerate theunion. Respondents take the same view. Tr. of Oral Arg. 22. We disagree, forthe union's object would necessarily be to force Hudik to cease doing businesswith Austin, not to preserve, but to aggrandize, its own position and that of itsmembers. Such activity is squarely within the statute.

Here, of course, the union sought to acquire work that it never had and that itsemployer had no power to give it, namely, the piping work on units specifiedby any contractor or developer who prefers and uses prepiped units. By seekingthe work at the Norwegian Home, the union's tactical objects necessarilyincluded influencing Austin; this conduct falls squarely within the statement ofNational Woodwork that a union's activity is secondary if its tactical object isto influence the boycotted employer.

"It is not necessary to find that the sole object of the strike" was secondary solong as one of the union's objectives was to influence another employer byinducing the struck employer to cease doing business with that other employer.See NLRB v. Denver Bldg. Council, 341 U.S. 675, 689, 71 S.Ct. 943, 951, 95L.Ed. 1284 (1951). See also Wilson v. Milk Drivers & Dairy Employees, Local471, 491 F.2d 200, 203 (C.A.8 1974); Riverton Coal Co. v. United MineWorkers, 453 F.2d 1035, 1040 (C.A.6), cert. denied, 407 U.S. 915, 92 S.Ct.2439, 32 L.Ed.2d 690 (1972); NLRB v. Milk Drivers & Dairy Employees,

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Local 584, 341 F.2d 29, 32 (C.A.2), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15L.Ed.2d 64 (1965).

The dissenters assert that "(n)othing whatever in the record even remotelysuggests that the union had any quarrel with Slant/Fin or Austin." Post, at 563and 539-540. The Court has held, however, that there is no need for the Boardto make such a finding in order to conclude that a § 8(b)(4)(B) violation hasoccurred. National Woodwork, 386 U.S., at 645, 87 S.Ct., at 1268, quoted at n.16, supra.

Section 8(b)(4)(B) was added to the Act as § 8(b)(4)(A) by the Taft-HartleyAct of 1947, and amended and renumbered by the Landrum-Griffin Act of1959. For the history of these provisions, see National Woodwork Mfrs. Assn.v. NLRB, 386 U.S. 612, 619-644, 87 S.Ct. 1250, 1254-1268, 18 L.Ed.2d 357(1967). The present text of § 8(b)(4)(B), in pertinent part, is set out in n. 1 ofthe Court's opinion, ante, at 509-510.

Section 8(e) was added to the Act in 1959. It provides, in pertinent part:

"It shall be an unfair labor practice for any labor organization and any employerto enter into any contract or agreement, express or implied, whereby suchemployer ceases or refrains or agrees to cease or refrain from handling, using,selling, transporting or otherwise dealing in any of the products of any otheremployer, or to cease doing business with any other person, and any contract oragreement entered into heretofore or hereafter containing such an agreementshall be to such extent unenforcible and void . . . ." 29 U.S.C. § 158(e) (1970ed., Supp. V).

The Court argues, contrary to this finding, that the union's object was "toacquire work that it never had," because unit members had never done "thepiping work on units specified by" a contractor who preferred prefabricatedunits. Ante, at 530 n. 16. The Board's finding that the union's aim was workpreservation, rather than work acquisition, disposes of this argument. At anyrate, striking workers in any work-preservation dispute have never before donethe particular job at issue in the dispute, and are seeking to "acquire" work thathas been assigned to other workers, but that is of a type that they havetraditionally performed for their employer. As the majority correctly points out,ante, at 529 n. 16, the Court in National Woodwork had no occasion to decidewhat implications its analysis might have when a union seeks to acquire tasksnot traditionally performed by its members, 386 U.S., at 630-631, 87 S.Ct., at1260-1261, and since this is not such a situation, I have no occasion to reachthat question here.

That National Woodwork required rejection of the "right to control" doctrine

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was quickly realized by the commentators.

"The modern primary-secondary analysis (of National Woodwork ) requires thecomplete abandonment of the present 'right to control' rule. The unit hasbargained for its rights and signed a contract with its employer, who happens tobe a subcontractor. These two are without doubt the primary parties. Thegeneral contractor is removed from this direct confrontation, enters into thepicture after the agreement has been made, receives his authority over jobplacement of the complaining unit derivatively from the subcontractor, and isfully aware of the consequences of such work-preservation agreements. Theeffects upon the general contractor of any strike in this situation are thusancillary to a primary dispute with the immediate employer vindicatingbargaining unit concerns. This result is required if the right to strike is to beassured to the subcontractor's employees. . . . (T)he subcontractor is merelyestopped from assigning to another party the rights he guaranteed to his ownemployees." Note, Secondary Boycotts and Work Preservation, 77 Yale L.J.1401, 1416-1417 (1968). (Footnote omitted.)

The Court purports to fail to see "(h)ow this observation impugns the Board'sfinding with respect to the union's object." Ante, at 531. That "finding" is basedexclusively on the inference that because only Austin could satisfy the union'sdemands, Austin must have been the real target of the union pressure. But sincethere were means by which Hudik could have satisfied the union's protest, andit did not attempt to take advantage of them, the premise of the Board'sargument falls. Cf. Local 742, United Brotherhood of Carpenters v. NLRB, 174U.S.App.D.C. 456, 467-468, 533 F.2d 683, 694-695 (1976), cert. pending, No.75-1706.

It is true that a possible result of successful work-preservation pressure by theunion might be "forcing a change in Austin's manner of doing business orforcing Hudik to terminate its subcontract with Austin." 204 N.L.R.B., at 760.But the same was true in National Woodwork. There, had the union succeededin enforcing its work-preservation agreement, the contractor would likely haveterminated its contract with the manufacturer of precut and prefitted doors.Such secondary effects are common in labor disputes, but do not compel theconclusion that they were the real object of the union, particularly where, ashere, alternative outcomes might also have satisfied the union. See supra, at538-539, and n. 4.

Such "hot cargo" clauses, then legal, are now prohibited by § 8(e). See n. 1,supra.

Sand Door is entirely consistent with National Woodwork, for the object of the

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pressure on the employer-contractor in Sand Door was "to satisfy unionobjectives elsewhere," specifically, to change the labor policy of themanufacturer.

As one commentator pointed out more than 10 years ago:

"Of course Sand Door holds that a valid contract is not a defense to a secondaryboycott. But it would be a serious misreading of that case, and indeed of theentire statutory evolution, to apply that notion in the context of (work-preservation agreements). Prior to 1959, a contract was lawful whether primaryor secondary; Sand Door spoke only to the effect of the latter type of agreementon section 8(b)(4). Section 8(e) now generally prohibits the mere execution ofsuch agreements. But if a contract is 'primary' i. e., not within section 8(e) at allit is equally primary to enforce it by economic pressure on the contractingemployer." Lesnick, Job Security and Secondary Boycotts: The Reach ofNLRA §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1040 (1965). (Footnotesomitted.)

Thus, while it is true that "a valid contract is not a defense to a secondaryboycott," Lesnick, supra, n. 8, the Court of Appeals was correct that "anemployer who is struck by his own employees for the purpose of requiring himto do what he has lawfully contracted to do to benefit those employees can(n)ever be considered a neutral bystander in a dispute not his own." 172U.S.App.D.C., at 243, 521 F.2d, at 903. (Emphasis added.) Of course, thisstatement presumes that enforcement of the work-preservation agreement is thetrue object of the union pressure, as the Board found was the case here, and nota mere pretext. If it were found, for example, that the union only enforced theagreement against prefabricated products manufactured by nonunioncompanies, and not against others, the object of the pressure would not beprimary (enforcing the work-preservation agreement), but secondary(influencing the labor policy of the manufacturer). Cf. National Woodwork,386 U.S., at 646, 87 S.Ct., at 1269.

Mr. Justice STEWART does not concur in this Part.

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